Inadmissibility of the appeal against definitive lifting of opposition for lack of current interest after payment of the amounts pursued

Facts

Parties and courts: The appellant A.A. (debtor, represented by two lawyers) and the respondent B.A. (creditor, represented by a lawyer) were spouses, divorced by judgment of the President of the Civil Court of the district of Lausanne of 15 February 2001, which ratified the agreement of 7 March 2000 and its addendum of 20 June 2000 on the effects of the divorce.

Terms of the agreement: The appellant is the sole owner of a property located at rue... in U.; management of the property is assigned to the respondent; the appellant must pay a monthly maintenance equal to 35.33% of the income from the property, debited directly from the management account. Income means rental income less the management commission, property tax, mortgage interest, current charges and maintenance works.

Debt enforcement proceedings: At the respondent's request, the Debt Enforcement Office of the district of Lausanne notified the appellant, on 11 January 2018, of two enforcement proceedings (no. x'xxx'xxx for CHF 10'370.45 concerning November 2017, and no. y'yyy'yyy for CHF 10'370.45 concerning December 2017), then, on 10 April 2018, of a third enforcement proceeding (no. z'zzz'zzz for CHF 50'214.16 corresponding to the 2017 balance of 35.33% of net rental income, after deduction in particular of amounts paid, the monthly instalments pursued and those that were the subject of pending definitive lifting proceedings). The appellant lodged a full opposition to all three proceedings.

Cantonal proceedings: By decision of 16 August 2018, the Justice of the Peace of the district of Lausanne granted definitive lifting of the oppositions. By judgment of 3 June 2019 (KC18.025661-190138 64), the Debt Enforcement and Bankruptcy Court of the Vaud Cantonal Court dismissed the appellant's appeal.

Appeal to the Federal Supreme Court: By submission of 14 August 2019, the appellant filed an appeal in civil matters, seeking principally reform (dismissal of the applications for lifting of opposition) and in the alternative annulment and remittal. She alleged violation of arts. 80 et seq. FSCA, 8 and 130 CC, as well as arbitrariness (art. 9 Cst.) in the establishment of the facts. The respondent sought principally that the appeal be declared inadmissible, and in the alternative its dismissal.

New facts alleged by the respondent: He maintains that the appellant paid the amounts pursued, that the office transferred them back to him, so that the three proceedings are settled, and that the appellant, in an action for performance of a fiduciary contract concerning the property, counterclaimed for repayment of all payments made since 5 January 2018 as maintenance contributions, thereby seising the competent authority of a claim for early recovery of undue payment.

Appellant's argument: She maintains that she retains an interest in appealing because of the concrete risk of new proceedings and new decisions, and relies on judgment 5A_852/2014 concerning the sale of a property, in which the interest in appealing against a denial of justice had not been refused.

Considerations

Ex officio examination of admissibility: The Federal Supreme Court examines of its own motion and freely the admissibility of the appeals submitted to it. It may take into account facts subsequent to the contested judgment in order to assess whether the conditions of admissibility are met at the time it rules, by way of derogation from the prohibition on new facts in art. 99 para. 1 FSCA.

Standing and interest in appealing: Under art. 76 para. 1 FSCA, the appellant must have taken part in the prior proceedings, be particularly affected and have a legitimate interest in the annulment or amendment of the decision. That interest consists in the practical utility that admission of the appeal would bring by avoiding a prejudice; it must be current and personal. An exception to the requirement of currency applies where the situation may recur at any time, making timely judicial review impossible (virtual interest). In the absence of a current and virtual interest, the appeal is struck from the roll if it has become moot, or declared inadmissible if the interest already lacked at the time of filing.

Nature of definitive lifting of opposition: Lifting-of-opposition proceedings are an incident of the enforcement proceedings. The judge in definitive lifting only examines the probative force of the instrument produced, not the merits of the claim. The decision lifting opposition only produces effects under debt enforcement law and does not give rise to the res judicata exception as to the existence of the claim.

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